DEBARMENT IN PUBLIC PROCUREMENT IN ZIMBABWE

Public Procurement refers to the process through which state entities in Zimbabwe purchase goods and services. The importance of public procurement laws and regulations is to ensure that the state’s contracting and purchasing activities are conducted legally, fairly, transparently and efficiently. In Zimbabwe, public procurement is governed by the Public Procurement and Disposal of Public Assets Act [Chapter 22:23] (hereinafter referred to as the Act) as well as the Public Procurement and Disposal of Public Assets (General) Regulations, 2018 (SI 5/18) (hereinafter referred to as the Regulations). This article explains debarment proceedings under public procurement and their effect on the debarred party.

Section 72 of the Act details the conduct bidders in procurement are prohibited from committing during the procurement proceedings and after the conclusion of procurement contracts. The prohibited conduct includes collusion amongst bidders, breaching the terms of the procurement contracts, committing an offence involving dishonesty, corruption, obstruction of justice, lack of honesty or business integrity and anti-competitive practices. Section 72 (6) further provides that the Regulations may provide debarring persons who commit the prohibited conducts outlined in the section from participating in future public procurement proceedings. 

Debarment Proceedings

A reading of the Act and the Regulations establishes that debarment involves a process through which one is barred from participating in future public procurement proceedings after having committed a prohibited conduct. As stipulated above, section 72 (6) of the Act establishes that Regulations made under section 101 of the Act may provide for the procedure through which a bidder or potential bidder in procurement proceedings may be debarred. Part XI of the Regulations outlines the debarment proceedings of bidders and contractors.

·         Recommendation for debarment

Section 69 of the Regulations provides that a bidder or a contractor may be debarred if he is found to be guilty of the conduct stipulated in section 72 of the Act. Therefore, a procuring entity wishing to have a bidder or contractor debarred submits a recommendation for debarment to the Procurement Regulatory Authority of Zimbabwe (PRAZ). The recommendation is submitted together with the name of the bidder or contractor complained against, the contract which gives rise to the recommendation, grounds for the recommendation and the evidence thereof.

·         Debarment Committee

On receipt of the recommendation the Chief Executive Officer (hereinafter referred to as the CEO) of PRAZ establishes a debarment committee whose function is to determine whether sufficient evidence has been provided to debar the bidder or contractor, and if so the period for debarment. The CEO then convenes a review meeting with the committee to determine the recommendation. If on review, the committee decides that no sufficient evidence has been proffered to debar the contractor or bidder, it notifies the procurement entity which made the recommendation, of its decision and reasons thereof.

However, where the debarment committee considers that there are grounds enough to proceed, it sends a copy of the recommendation and all the documents attached to it to the contractor or bidder and may issue a notice of suspension against the bidder form participating in procurement until the committee makes its decision. If within 10 days of receiving the recommendation the bidder or contractor does not respond, the committee will proceed to make its determination.

The accused bidder or contractor may within 10 days of receipt of the recommendation inform the committee of his intention to contest the recommendation. Upon such indication of intention to contest, the Debarment Committee then informs the bidder of the date by which he should submit his written response to the recommendation. In terms of section 73 of the Regulations, upon receipt of the written response from the bidder, the committee is obliged to afford the bidder an opportunity to make representations before making its decision. Therefore, the committee may convene a hearing and allow the contractor to make representations and thereafter make its decision.

The decision of the committee is reached on a balance of probabilities and by majority vote of the committee. The sanctions which the committee may impose after finding that bidder is guilty of prohibited conduct are as follows:

§  caution – a written formal letter to the bidder or contractor warning him or her to avoid the conduct in the future;

§  reprimand – a written formal letter to the bidder or contractor reprimanding him or her for the conduct;

§  suspension from participating in public procurement for a period not exceeding twelve months, coupled with a remedial plan that the bidder or contractor will be obliged to carry out; 

§  temporary debarring – disbarring the bidder or contractor from participation in procurement proceedings for a period of more than twelve months but not exceeding three years, as specified by the committee;

§  permanent debarment.

·         Effect of debarment

In terms of section 76 of the Act states that a debarred bidder shall remain liable to perform his or her obligations under an existing  procurement contract. The debarment also applies to the bidder’s successor where such successor is influenced or controlled by the bidder or contractor. The net effect of debarment which is perhaps more significant is that the contractor or bidder is barred form participating in procurement proceedings for the period he or she is debarred for. 

The resultant effect of this is to ensure that contracted entities under public procurement conduct themselves in a manner commensurate with the principles laid out in the Act. Because public procurement involves economic transactions which are done for the benefit of the state, debarment proceedings act as a way to ensure that contractors do not neglect their obligations under a contract and affect the financial workings of state entities.